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District of Columbia v. District of Columbia Department of Employment Services

August 12, 1999

DISTRICT OF COLUMBIA, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.



Before Terry, Steadman and reid, Associate Judges.

The opinion of the court was delivered by: Reid, Associate Judge

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Petition for Review of a Decision of the District of Columbia Department of Employment Services

Argued December 11, 1999

Decided August 12, 1999

Petitioner, the District of Columbia, petitions for review of a decision of the Office of Appeals and Review ("OAR") of the Department of Employment Services ("DOES") which reversed the appeals examiner's decision and granted Ava L. Orr unemployment benefits. On appeal, the District contends that the OAR erred by ruling that the District of Columbia Department of Corrections provided insufficient evidence to show that Department Order 3350.2 was consistently enforced. We agree, reverse the OAR's decision, and remand this case to the Director for further action not inconsistent with this opinion.

FACTUAL SUMMARY

Ava L. Orr was employed as a Correctional Officer with the District of Columbia Department of Corrections ("DOC") from January 13, 1991 until April 26, 1996. On March 21, 1996, DOC issued Ms. Orr a letter of "proposed removal from office" for violation of Department Order 3350.2, which prohibits intimate relationships with inmates. In her written response, Ms. Orr denied ever having a relationship with an inmate and asserted that the telephone number and address relied upon by DOC in its investigation did not belong to her. On April 15, 1996, concluding that Ms. Orr had in fact violated rule 3350.2, the DOC issued Ms. Orr a dismissal letter effective as of April 26, 1996.

On July 5, 1996, a claims examiner determined that Ms. Orr was eligible for unemployment benefits since "no disqualification [had] been imposed based on separation from [her] employment." The District of Columbia ("District") requested a hearing to establish whether Ms. Orr had been terminated for misconduct under D.C. Code § 46-111 (b)(1) (1996), *fn1 and was thereby disqualified from receiving benefits. A hearing was held on August 13, 1996. Lieutenant Gregory A. King and Sergeant Terry Battle testified on DOC's behalf. In particular, Lieutenant King testified that DOC trained all of its employees pre-service and in-service on its regulations, including rule 3350.2, and that DOC required employees to sign a statement attesting to the fact that they had received such training. Further, Lieutenant King testified that there were some employees still working at DOC who had violated rule 3350.2. At this point, the following colloquy ensued:

APPEALS EXAMINER:

"Okay, since I indicated at the beginning of the Hearing, in order for you to find that someone has engaged in misconduct, where they have violated a policy, there must be a showing that the policy was consistently enforced. What would your response be if I said, well, how can you say that [the rule] was consistently enforced if Ms. Orr was fired and some people were not?"

LIEUTENANT KING:

"Because of procedural errors. Either the investigation was done incorrectly, or there was just general procedural errors. They violated the employees' rights. Under Union contract, or whatever the matter may be."

Ms. Orr, who was not present for the hearing but participated by telephone, testified that she was aware of rule 3350.2 and had received training ...


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